Wednesday, February 14, 2007

The "numerosity" requirement of class certification it is almost always satisfied, so the case law very rarely discusses it. In McGaughey v. Treistman, 2007 WL 24935 (S.D.N.Y. Jan. 4, 2007), however, the court denied class certification of "a class of one" for failure to satisfy the numerosity requirement:

Plaintiff here appears to be a potential class of one. Although Plaintiff has been given the opportunity to conduct discovery regarding class certification – as well as an extension of discovery on that issue, at Plaintiff’s request – Plaintiff has provided no evidence that either Defendant or NY Essex has ever sent more than one fax arguably in violation of the [Telephone Consumer Protection Act, 47 U.S.C. §§ 227 et seq.], and that one to this Plaintiff. SeeWeiss v. Fein, Such, Kahn & Shepard, P.C., 2002 U.S. Dist. LEXIS 4783, at *5-6 (S.D.N.Y. 2002) (denying class certification on grounds of numerosity, stating, “there is nothing in the record to indicate that anyone besides plaintiff received a letter from defendants containing the allegedly violative language.”). Plaintiff has failed to even submit a Statement of Facts pursuant to Local Rule 56.1 rebutting Defendant’s assertion that one, and only one, fax to one and only one plaintiff is at issue in this litigation.

Plaintiff has failed to meet his burden to satisfy the Rule 23(a) requirement of numerosity. Because Plaintiff has failed to meet this burden, it is unnecessary for me to consider the remaining Rule 23 requirements.

Slip op. at 4 (footnotes omitted). The court went on to dismiss the action for lack of federal jurisdiction, the only basis for which was either CAFA or the general federal diversity statute. Once it was clear that the case was not a class action, and that the $75,000 amount-in-controversy requirement could not be met, neither CAFA nor the general diversity statute provided subject matter jurisdiction, compelling dismissal of the action. Id. at 5. [Via Federal Civil Practice Bulletin.]